Wisconsin Lawyer
Vol. 78, No. 9, September
2005
Lawyer Discipline
The Office
of Lawyer Regulation (formerly known as the Board of Attorneys
Professional Responsibility), an agency of the Wisconsin Supreme Court
and component of the lawyer regulation system, assists the court in
carrying out its constitutional responsibility to supervise the practice
of law and protect the public from misconduct by persons practicing law
in Wisconsin. The Office of Lawyer Regulation has offices located at
Suite 315, 110 E. Main St., Madison, WI 53703, and Suite 300, 342 N.
Water St., Milwaukee, WI 53202. Toll-free telephone: (877) 315-6941.
Disciplinary Proceedings against
Michelle L. Tully
On July 6, 2005, the Wisconsin Supreme Court suspended the law
license of Michelle L. Tully for two years, effective Aug. 17, 2005, for
committing 29 counts of professional misconduct involving six grievance
matters. The court also ordered that Tully pay the $1,878.01 cost of the
disciplinary proceeding and restitution to one client in the amount of
$1,306 and that she attend continuing legal education (CLE) courses
during the suspension. As a condition of her reinstatement, the court
ordered that Tully demonstrate an understanding of the relationship
between her misconduct and the consequences for her clients as well as
the damage to the public's perception of the legal profession.
Disciplinary Proceedings Against Tully, 2005 WI 100.
Tully's law license was suspended on June 3, 2002, for her failure to
comply with mandatory CLE requirements. She was reinstated from that
suspension on Dec. 20, 2002. Tully's law license was again suspended on
May 15, 2003, for her failure to cooperate with two Office of Lawyer
Regulation (OLR) grievance investigations. Tully's license has remained
suspended since that date.
Tully failed to file an answer to the OLR's amended complaint and did
not appear during a telephone hearing before the referee. The court
adopted the referee's findings of fact, conclusions of law, and
recommended level of discipline. Tully's misconduct included three
violations of SCR 20:1.3 for lack of diligence in three separate client
matters; four violations of SCR 20:1.4(a) for failing to respond to
reasonable requests for information from clients; and three violations
of SCR 20:1.16(d) for failing to take steps to the extent reasonably
practicable to protect clients' interests upon termination of
representation, including failure to timely return two clients' unearned
fees, failure to timely return one client's file, and failure to notify
a client and insurance companies involved in personal injury actions of
her withdrawal from representation.
Tully's misconduct also included four violations of SCR 31.10(1) for
practicing during her CLE suspension in four separate matters and four
violations of SCR 20:8.4(c). The SCR 20:8.4(c) violations involved three
instances of failing to disclose on her Board of Bar Examiners sworn
petition for reinstatement her representation of a client during her CLE
suspension and one count for converting client funds, by disbursing to
herself $1,233.34 more in attorney fees from a client's settlement than
she was entitled to receive. Tully also violated former SCR 20:1.15(a)
by failing to maintain a client trust account in an institution licensed
to do business in Wisconsin, former SCR 20:1.15(b) by failing to pay a
client's two medical creditors after withholding the amounts due those
creditors from the client's settlement proceeds, SCR 22.26(1)(a) and (b)
by failing to notify a client of Tully's suspension and advise him to
seek legal advice elsewhere, SCR 22.26(1)(c) by failing to provide
notice of her suspension to a court in a pending matter, and SCR
22.26(2) by continuing to represent a client after her law license was
temporarily suspended.
Finally, Tully's misconduct included six counts of failing to
cooperate with OLR investigations. Tully failed to file written
responses in three OLR investigations, failed to file written
supplemental responses in the other three matters, and also failed to
respond to district committee requests for information.
In issuing the two-year suspension, the court noted that Tully had
engaged in multiple counts of misconduct involving multiple clients and
had repeatedly practiced law when she knew her license was suspended,
thereby exhibiting a blatant disregard for the court's rules and
orders.
Disciplinary Proceedings
against Mark E. Robinson
On June 24, 2005, the supreme court suspended the law license of Mark
E. Robinson, Janesville, for six months, effective Aug. 6, 2005.
Disciplinary Proceedings Against Robinson, 2005 WI 88. The
court also ordered Robinson to pay the full costs of the disciplinary
proceeding.
Robinson's misconduct occurred in the context of multiple real estate
transactions, some involving property in which he had an ownership
interest. Robinson engaged in multiple conflicts of interest, contrary
to SCR 20:1.7(a) and (b). In more than one instance, Robinson engaged in
conduct involving dishonesty, fraud, deceit, or misrepresentation,
contrary to SCR 20:8.4(c). In one instance, Robinson violated SCR
20:5.3(c)(1) by instructing his legal assistant to engage in conduct
that would have violated SCR 20:8.4(c) had Robinson engaged in the
conduct himself. In one of the matters, Robinson also violated SCR
20:8.4(a) by attempting to have direct contact with a represented party,
which is prohibited under SCR 20:4.2.
Disciplinary Proceedings against
Joseph Engl
In an opinion filed July 6, 2005, the supreme court publicly
reprimanded Joseph Engl, 29, West Allis, for a violation of SCR
20:8.4(b), which states that it is professional misconduct for a lawyer
to commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness, or fitness as a lawyer in other respects.
Disciplinary Proceedings Against Engl, 2005 WI 102. The order
of discipline was consistent with a stipulation filed by Engl and the
OLR pursuant to SCR 22.12.
In April 2004, while working at his former law firm, Engl entered an
Internet chat room where he engaged in a conversation with a detective
posing as a 14-year-old girl. Engl expressed interest in having sex with
the purported girl and arranged to meet her that evening. Engl was
arrested when he arrived at the prearranged meeting place, and he was
subsequently charged and convicted of one count of using a computer to
facilitate a child sex crime, a Class D felony.
In imposing discipline at the public reprimand level, the court cited
mitigating circumstances, including the absence of prior discipline,
Engl's cooperation with law enforcement and the OLR, and the fact that
the misconduct occurred at a time when Engl was under extreme stress,
stemming from long work hours and the recent death of Engl's mother.
Engl was fired from the firm where he worked at the time of his
misconduct. Three therapists who evaluated Engl opined that Engl was
unlikely to re-offend.
Disciplinary Proceedings
against Arik J. Guenther
By order dated July 19, 2005, the supreme court suspended the law
license of Arik J. Guenther, 51, formerly of Campbellsport and now of
Fond du Lac, for eight months, effective Aug. 30, 2005. Guenther also
was ordered to pay $16,207.21, the cumulative costs of two disciplinary
proceedings. Disciplinary Proceedings Against Guenther, 2005 WI
133.
The court's order concerned two separate but related disciplinary
actions in which the respective referees had recommended a six-month and
a two-month suspension and had collectively found a total of 15 counts
of misconduct. Although the referee in the second matter recommended
that the two-month suspension run concurrent with the six-month
suspension, the court ruled that the suspensions would be
consecutive.
The first two counts concerned Guenther's representation of a client
in a divorce and custody matter. Guenther attended a hearing to amend a
temporary custody order without his client being aware of the hearing. A
temporary order was entered that significantly amended visitation.
Guenther did not promptly notify his client of the change, with the
result that when the opposing party arrived at the client's house
several days later to pick up a child in accord with the new order, a
dispute arose and the police had to be called. Guenther subsequently
told the client he had filed a motion to change the amended order, but
he never did so. Guenther thereby failed to keep a client reasonably
informed, contrary to SCR 20:1.4(a); and engaged in conduct involving
dishonesty, deceit, or misrepresentation, contrary to SCR 20:8.4(c).
Disciplinary counts 3 through 5 involved Guenther's handling of trust
account funds for another divorce client. After the representation
ended, Guenther failed to provide an accurate accounting of the client's
funds still held in trust, removed more fees than he was owed, and
failed to provide an accurate accounting to the OLR, in violation of SCR
20:1.15(b), 20:1.15(d), and 22.03(6). Counts 6 through 8 arose out of
the OLR's review of Guenther's trust account records and involved a
failure to maintain complete trust account records, contrary to SCR
20:1.15(e); a failure to submit complete records for the OLR's
inspection, contrary to SCR 20:1.15(f); and a false certification that
he was retaining required trust account records, contrary to SCR
20:1.15(g). Counts 9 through 13 arose from numerous trust account
discrepancies involving a dozen clients and involved failures to hold
client funds in trust, contrary to SCR 20:1.15(a); a failure to
cooperate with the OLR's investigation, contrary to SCR 22.03(6);
dishonest or fraudulent conduct, contrary to SCR 20:8.4(c); and a
failure to appropriately supervise a nonlawyer's conduct, contrary to
SCR 20:5.3(a).
The final two counts dealt with a collection matter Guenther was
handling for a client. Guenther failed to properly deposit and record
the funds he received and failed to document the amounts he was
forwarding to the client or paying himself for fees. Guenther engaged in
misconduct by failing to hold client funds in trust, contrary to SCR
20:1.15(a); and by failing to provide requested trust account records
for the OLR's inspection, contrary to SCR 20:1.15(f).
The court noted that Guenther had previously received three private
reprimands. Guenther was ordered to pay the costs of the proceedings and
to file quarterly trust account reports with the OLR for two years as a
condition of reinstatement.
Disciplinary Proceedings
against Charles J. Hausmann
On July 19, 2005, the supreme court suspended the law license of
Charles J. Hausmann, Milwaukee, for one year, effective Aug. 30, 2005,
for having committed two counts of professional misconduct as alleged in
a complaint filed by the OLR. Hausmann also was ordered to pay the
$14,431.78 costs of the disciplinary proceeding. Disciplinary
Proceedings Against Charles J. Hausmann, 2004AP156-D.
A referee and the court found, and Hausmann stipulated, that Hausmann
engaged in a conflict of interest by representing a client when that
representation was materially limited by Hausmann's own interests.
Hausmann concealed from his clients an arrangement with a chiropractor,
whereby the chiropractor returned a portion of the clients' medical fees
to Hausmann. This arrangement deprived Hausmann's clients of the
"intangible right to honest services."
Hausmann also stipulated to committing a criminal act that reflects
adversely on a lawyer's honesty, trustworthiness, or fitness as a
lawyer, based on his conviction of federal felony conspiracy to commit
mail and wire fraud, in violation of 18 U.S.C. §§ 2 and 2314.
That charge arose from Hausmann's financial arrangement with the
chiropractor that called for the chiropractor to write checks at
Hausmann's direction, equaling approximately 20 percent of the medical
bills collected by the chiropractic center. Hausmann failed to disclose
that arrangement to his clients, thereby depriving his clients of their
intangible right to honest services. As a result of his conviction,
Hausmann was sentenced to two months' imprisonment, 16 months of
supervised release, and 40 hours of community service. Hausmann also was
fined $10,000 and ordered to pay restitution to his clients in the
amount of $77,062.87 jointly and severally. Hausmann personally paid the
full restitution.
The referee recommended, and the court ordered, that Hausmann's
Wisconsin law license be suspended for one year. Although the referee
commended Hausmann for his charitable work, the referee criticized
Hausmann for his poor judgment and disturbing positions, which failed to
recognize the conflict of interest and the effect of his actions on his
law firm and the legal profession.
Disciplinary Proceedings against Richard
Bolte
In a July 19, 2005 decision, the Wisconsin Supreme Court publicly
reprimanded Richard Bolte and ordered him to pay the $23,234.64 costs of
the disciplinary proceeding. Disciplinary Proceedings Against
Bolte, 2005 WI 132.
Bolte's Wisconsin law license has been inactive since 1989. Bolte is
not licensed in Colorado, where, in violation of Wisconsin SCR
20:5.5(a), he performed legal services for a woman in connection with
amounts paid to her by an energy company pursuant to a mineral rights
lease. When Bolte sought more money from the woman than she was willing
to pay for his services, the woman sued Bolte, seeking to void their
contract based on his unlicensed practice and to recover fees already
paid. The Colorado court found in favor of the woman. Before the court
issued a writ of execution, Bolte transferred ownership of property he
owned in Colorado to a Nevada corporation for no consideration and
without notice to the corporation, which was owned by an acquaintance of
Bolte's. The property transfer was done in violation of SCR 20:8.4(c),
which prohibits conduct involving dishonesty, fraud, deceit, or
misrepresentation.
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